Friday, June 12, 2009

Personal Aside: Miguel Estrada—Remember Him? Excellent Judicial Credentials for Appeals--but the Wrong Views for Dickie Durbin.


Dems Contrive a Catch 22.

To many liberal Democrats, it’s the height of racism for Republicans to oppose the Supreme Court nomination of likely pro-abort Catholic Sonia Sotomayor. But few remember the Dems’ lynching of the first prominent Latino named to a high judicial post—a pro-life Catholic.

He was—and is—Miguel Angel Estrada Castanada, foreshortened by Hispanic custom and known as Miguel Estrada. In 2001, at age 40, he was nominated by George W. Bush to the District of Columbia’s prestigious Court of Appeals, the first Hispanic to be named to this post. Because his confirmation by the Senate would likely lead to his future appointment to the Supreme Court…and because he seemed a strict constructionist and pro-lifer…defeating him by eye-gouging political tactics didn’t bother the hypocritical members of Democratic liberal sanctimoniousness one bit.

They were: the bloviating Ted Kennedy [Mass.], hustler Dickie Durbin [Ill.], sardonic Chuck Schumer [NY], magisterial Patrick Leahy [Vt.], sepulchral Harry Reid [Nev.] and garrulous Hillary Clinton [N,Y.].

They didn’t give a hoot about torpedoing the first Hispanic to be named to the court of appeals and preventing one from moving on to the Supreme Court for a stretch of nine years. They had one overriding mission to perform that transcended race: keep the Court from tipping conservative and pro-life.

Now the shoe is on the other foot. The Obama White House and the Democrats want credit from Latinos for naming the first Supreme Court Justice and warns Republicans they will be stigmatized as racists if they vote against her.

Immigrant Estrada: the Real Horatio Alger.

Obama’s chief flack David Axelrod extols Sotomayor’s life story which is impressive (as I recount later) but Miguel Estrada’s…moving here from the land of his birth, Honduras without knowledge of English to acknowledged acclaim for his mastery of the law… is much more of a compelling one. If as Obama says, a hardscrabble early life produces needed “empathy” (his word) in a Supreme Court nominee, Estrada should have been confirmed by Democrats hands down and Clarence Thomas should have been carried to his court chambers on shoulders of the senators.

Estrada’s story:

He was born in Teguecigalpa, Honduras in 1961. After his parents divorced he lived with relatives; then, at age 17 he immigrated to the United States with a scant facility in English to be with his mother. Working by day, learning English by night and gaining his scholastic education in the late-late hours, he got a bachelor’s degree from Columbia in 1983 and won a full scholarship to Harvard Law. There he edited its prestigious Law Review, receiving his JD magna cum laude, after which he was chosen as a law clerk by Supreme Court Justice Anthony Kennedy. From 1990 to `92 Estrada was assistant U.S. Attorney and deputy chief of the appellate section of the southern district of New York.

He served as assistant to the U.S. solicitor general in the Clinton administration. On May 9, 2001 President Bush nominated him to the U. S,. Court of Appeals for the D. C. circuit, a post widely viewed as a stepping-stone to the Supreme Court. He received a unanimous “well qualified” rating from the American Bar Association. But when he was named, a red flag was flown in the Democratic senate caucus by the pantingly liberal Durbin, the party whip who is a wind-sock for lefty interest groups: People for the American Way, NARAL, the Alliance for Justice, the Leadership Council on Civil Rights and the NAACP. They pressured him and he alerted Senate liberals that Estrada’s career should be derailed or he would ultimately tip the court to strict construction.

Initially Democrats felt the chances to beat Estrada amounted to a slam-dunk. When Estrada’s name came to the Senate, the body was evenly divided with Vice President Dick Cheney’s vote breaking a tie. Then liberal Republican Jim Jeffords [Vt.] bolted the GOP, registered as an independent, but caucused with the Democrats, giving the Dems a 50 to 49 edge, out-pointing Cheney’s tie-breaking voting. They took charge of the Senate and gave themselves a 10 to 9 advantage on the Judiciary committee. Estrada’s nomination was thus bottled up in committee.

But the 2002 elections gave Republicans the two seats they needed to regain control of the Senate. Thereupon the Democrats did what they do so superbly when challenged by a nominee of great expertise but who does not comport with liberalism. Schumer and Durbin conferred. They decided on an ingenious plot. Since Estrada worked in the office of Solicitor General at Justice under George H. W. Bush and Bill Clinton—the office that decides what issues an administration will push in the Supreme Court—Estrada wrote some confidential memos there on key cases.

Solicitor General’s memos are always confidential (they have to be) they knew, so they plotted: “Why don’t we push for the release of memos Estrada wrote? No administration can release them, so we have an airtight rationale that Estrada and the Bush people have something to hide. We will insist we can’t tell what kind of jurist Estrada would be unless we see the memos and as the Bush administration won’t release them, it smacks of cover-up! And the sympathetic press will cover us.” Thus Schumer and Durbin…the hypocritical conspirators… invented a brilliant but legally insupportable rationale to block this historic appointment, avoiding the real reason: Estrada being a pro-lifer.

With media playing cover-up, the campaign against Estrada started. Schumer, well known on TV for his piercing nasal Bronx accent (he pronounces “New York” as “Noo Yawk”) , brayed that “no judicial nominee that I’m aware of for such a high court has ever had so little a record”—pushing for release of secret memos-- ignoring that Estrada had argued 10 cases as a prosecutor and 7 before the District of Columbia 2nd circuit. Durbin charged that no high court nominee had ever been named to the Supremes or Appeals without having been a judge. Wrong. The greatest chief justice in U.S. history hadn’t been a judge—John Marshall. Neither had the liberals’ favorite chief justice, Earl Warren nor had two other liberal icons who went straight, unblemished by judicial experience to the Supreme Court: Louis Brandeis, a so-called public interest “lawyer for the people” and Hugo Black of Alabama, from the U.S. Senate.

As usual, the media which are designed to catch such political duplicity and inaccurate charges not only didn’t but were complicit in spreading the notion that Estrada and the Justice Department had something to hide. This drumbeat played into the hands of Senate Democratic leader Tom Daschle [S.D.]. Daschle charged in a fantasy he wove out of whole cloth that “I have concluded that Mr. Estrada holds positions that are extreme in their nature…that could be defined as ultra-far right.” Else why couldn’t the memos he wrote be released? Thus they concocted the specter of Estrada as a stealth candidate for the bench where the Senate was willfully deprived by the Bush White House of viewing his memos that would give it a sense of his philosophy.

Frist Bobbles the Game in the Senate.

Now the scene switches to the Senate where Republicans have some culpability in failing to carry Estrada through to confirmation. There were two misplays for which I blame the Republicans, then under the majority leadership of Bill Frist [Tenn.]. Frist, a distinguished surgeon in private life, was an uncertain and inexperienced Senate leader at best. He flabbily declined to use his majority status to change the Senate rule that demanded a 60 vote majority to break a filibuster and confirm judges. Applying a super-majority to cloture for judges was always a hoax from the beginning, since under the Constitution it applies only to ratification of treaties which requires a two-thirds majority. It’s a throwback to the old civil rights days when the originally segregationist Democratic south held sway in the Senate and applied two-thirds to break a filibuster on civil rights. As result of hard bipartisan work, however, the number to break a filibuster was lowered to 60 in 1975.

A more effective leader than Frist would have rammed—or at least tried to ram--cloture (filibuster breaking) on judicial nominees to a simple majority—51. But Frist shook his fist, thundered he would do so but never actually did: a sure sign of a weak, overly-accommodating leader. Instead a modified “filibuster” began to block the 60 votes, with rules courteously accommodating the opposition…not following the same stringent rules as used in the 1960s on civil rights where filibustering members were forced to swap speeches night after night while their relief members dozed on cots). Thanks to Frist’s weakness.

On March 6, 2003 the first of several votes failed on Estrada—55 voting to end debate on his nomination and 44 voting to continue debate. All seven living ex-Solicitors General stood up for Estrada and testified to a haughty Judiciary Chairman Patrick Leahy (D-Vt.) that demanding confidential records from the Justice Department as Schumer and Durbin did was unprecedented and grossly improper. But Leahy and the liberal group shrugged off the ex-Solicitors and kept on saying, “what is Estrada hiding?” So after more than two-years (28 months) of enduring Democratic stalling on his nomination, Miguel Estrada pulled the plug and withdrew his name from consideration. Thanks to Schumer and Durbin’s duplicity,…Leahy’s stonewalling…Daschle’s demagoguery…and Frist’s wobbly inexperience and timidity…the chance for the first Latino—a pro-lifer-- to serve on a high court was dashed.

Now that the Obama administration implies opposition to Sotomayor is anti-Hispanic, the facts of their culpability on Miguel Estrada deserve greater attention than they have yet received.

Axelrod Orchestrates Sotomayor.

The White House-Democratic party sales job on Sotomayor reflects David Axelrod at his deceptive best. Having known Axelrod in Chicago for 30 years, I recognize his fine handiwork, taken directly from the manual devised by the founder of the craft of public relations, Edward Bernays (who was hired by Woodrow Wilson to goad us into World War I and by the Rockefeller family to beguile us with stories of the family’s compassion, all unfolded in Bernays’ book Manipulating Public Opinion. Bernays dying in 1996 at age 103).

The public has long loved rags-to-riches stories (see the Joe Biden bogus bio story I wrote last week). Axelrod spun the fact that she lived as a child in public housing in New York city. Yes—but not long: she spent from teens to adulthood in a middle-class neighborhood which you don’t hear about.

Also, Axelrod fantasized that she is the child of a single mom, to give the story some heart-tugs. “Single mom” is a phrase that evokes heart-tugs. Sotomayor’s mother was a widow, which doesn’t lend itself to the categorization of “single mom.” In fact as Axelrod well knows, that characterization of a widow as a “single mom” is not just sly but duplicitous.

Not long ago the nationally syndicated columnist Michael Barone used Axelrod’s tactics to make the faux case that he—Barone—came from hardscrabble, disadvantaged background. He was born in a working class neighborhood in Detroit and that his father made his living working with his hands. Early on the Barones moved to Bloomfield Township (a high income suburb) and his father was a surgeon. That tricky policy of evasion is how Axelrod works.

Axelrod’s histronics aside, Sonia Sotomayor has an impressive background--valedictorian at New York’s Blessed Sacrament elementary school; high ranking graduate at Cardinal Spellman High; winner of a full scholarship to Princeton where she received her B. A. summa cum laude; on to Yale for her J.D., she also serving as editor of the prestigious Yale Law Journal; then to work as an assistant to crusty old Robert Morganthau, Manhattan district attorney (the original role model for the TV series Law and Order); following which she was appointed to the federal bench by George H. W. Bush and to the court of appeals by Bill Clinton.

As earlier stated, Sotomayor’s views on abortion are hidden—and she’s not going to reveal them. But any thought that Obama would name a crypto pro-lifer to the high court should be dismissed as fantasy.

But what troubles Republicans up to now are two things that show her as a proponent of racial identity politics. One involves 32 words of a 4,000 word total she delivered during a speech at the University of California-Berkeley more than 7 years ago, on Oct. 26, 2001: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Obama himself appeared before the media to wish she had phrased it better—and Axelrod in the White House has been importuning the media to slough it off as just bad choice of words and “taken out of context.” Nonsense, the sentence was written by her, was not impromptu or extemporaneous as Axelrod maintains.

In fact, the “Latina” application to her judging is replete throughout her speech. She added: “Personal experiences alter the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know how exactly what that difference will make in my judging. But I accept there will be some based on my gender and Latina heritage.”

The second trouble spot for Sotomayor was her role in Ricci v. DeStefano when as a member of the 2nd circuit court of appeals’ three-judge panel she ruled against a group of New Haven, Conn. firefighters (19 whites and an Hispanic) in February, 2008. The firefighters brought a charge of reverse racial discrimination. Sotomayor and her colleagues disposed of the complaint with a one-paragraph, unpublished order with no mention of constitutional law that was raised in the appeal. The order was challenged by yet another 2nd circuit judge, an Hispanic who had been appointed by Clinton, Jose A. Cabranes who said the panel ignored “questions of exceptional importance.”

Following Cabranes’ dissent the Supreme Court took up the Ricci case and heard arguments on April 22. The court is expected to issue its finding in June—which may…just may…harm Sotomayor’s chances if the court rules against her.

Liberal Media Threaten Republicans.

A chorus of “mainstream” newspaper and TV commentators are warning the Republicans to keep hands off from criticizing Sotomayor or risk losing even more of the Hispanic vote. Their concern about the GOP is not very convincing given the lynching their Democratic party patrons administered to Miguel Estrada. Last week the GOP Senate strategy seemed to be a good one: as a first order of business, subpoena Frank Ricci of Ricci v. DeStefano to give his side of the affirmative action case. There appears to be no clear-cut view of her philosophy vis-à-vis abortion and it is expected that like all other recent nominees she will dodge any attempt to pin her down.

However, it is clear that throughout Sotomayor’s entire career she has worked the liberal side of the judicial street, larding her “experiences” as a Latina that shape her judgments of the law rather than adhering to the facts of cases impartially. Republicans shouldn’t be intimidated by the media or David Axelrod’s manufactured concern that opposing Sotomayor will harm the GOP with Latinos.

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